First and foremost many individuals believe the term “equitable division” means equal. That, however, is not the case. Equitable division means fair. On occasion, that can mean equal, but that is not always true. The idea of equitable division is to ensure that property acquired during the parties’ marriage is distributed between them in a fair fashion. Therefore, each party is entitled to a piece of the pie in accordance with their equitable share.

​Depending on the facts of the case, and the behavior of the parties the pieces might be equal, or one might be larger than the other. As you continue reading, know that separate property is not subject to equitable division, while marital property is. As straightforward as that sounds determining whether something is separate property or marital property can be tricky. On occasion a party can do something to convert what was once separate property into marital property, even unintentionally. ​

​For more information on property division see our article here.​Separate property, or a parties’ separate estate is a property interest brought into the marriage that was acquired by one of the parties by themselves, before the marriage, or occasionally during the marriage. This kind of property interest is not subject to equitable division because it was not generated by the marriage. A separate property interest belongs solely to the spouse who acquired it.
Examples of separate property include but are not limited to: Property acquired by one party, before or during the marriage by either,

  1. Gift;
  2. Inheritance;
  3. Bequest;
  4. Devise.

Additionally, if one spouse uses his or her separate funds prior to, or during the marriage to purchase a property interest, that property interest will remain that spouses’ separate property. Unless, intentionally or unintentionally converted to marital property.

For example, titling a home purchased with the separate funds of one spouse, in the name of both spouses creates the rebuttable presumption that the home was a gift to the marital unit. Therefore, in titling the home in both names one spouse has converted his or her separate property into marital property, subject to equitable division. This conversion could even be achieved by co-mingling the separate funds with marital funds.

Determining whether a property interest is, or is not subject to equitable division is not always straightforward. Allow an experienced attorney at Jarrett & Price to assist you in determining what interests you have, and what you are rightfully entitled to at the conclusion of your marriage.  Give our office a call at 912.401.8880 or complete the contact form below and one of our representatives will contact you soon.

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